Important copyright case

An article in today’s Chronicle of Higher Education discusses a case that was brought by three publishers against Georgia State University. The publishers (Oxford University Press, Cambridge University Press, and Sage Publishers) object to librarians and professors disseminating course readings online, through Blackboard / WebCT or other electronic means.

The university claims that these activities are protected under academic fair use. However, the publishers argue that fair use was violated because the amount of material disseminated this way was systematic and widespread. In other words, many professors and librarians were doing it.

There are no “rules” about how to apply fair use. Instead, there are four factors that are considered in determining whether a use of copyrighted materials is fair or not. These are the purpose and character of your use (academic use is a plus); nature of the copyrighted work (use of factual works is more likely to be considered fair, whereas use of creative works is less likely to be considered fair); the amount and substantiality of the portion taken (and “substantiality” is at least as important as actual amount); and the effect on the potential market for the material.

It seems that the publishers are making a case that the last two factors weigh against fair use in Georgia State’s case. But note that any individual professor’s use may not be substantial or have a noticeable effect on the market. The publishers claim that in the aggregate, the practice of online dissemination affects their business.

The outcome of this case is extremely important to any universities who make use of electronic reserves, or whose instructors distribute readings via Blackboard or similar means. If the publishers win, I could see many universities simply banning all electronic distribution of copyrighted materials, unless permission was obtained from the publisher. Note that obtaining permission usually means that a royalty fee must be paid. Payment of royalties would be a substantial new cost for universities.

On the other hand, if the University wins, it will clarify how fair use applies to electronic distribution of course materials.